After Barr's Snub, Democrats Lack Options to Compel Cooperation

(Bloomberg) -- Attorney General William Barr’s snub of a House
hearing on Robert Mueller’s Russia report exposed that
Democrats are in an awkward position: They don’t have any good
options for forcing the Trump administration to cooperate with
their multiple investigations.

Democrats seeking to compel -- or punish -- Barr and others who
ignore Democratic invitations and subpoenas could pursue
contempt proceedings, which carry no tangible penalty when
branches of government face off, or take action in court, which
would be protracted.

House Speaker Nancy Pelosi and Democratic leaders are resisting
the other obvious option -- moving to impeach the president --
even as Republicans goad them on.

Barr didn’t show up as scheduled Thursday to testify before the
House Judiciary Committee, complaining about the format for
questioning. That came as Barr and the Justice Department
defied a committee subpoena to turn over the full, unredacted
version of Special Counsel Mueller’s report on Russian
interference in the 2016 presidential election and the evidence
behind it.

“This is a great danger to American democracy,” Judiciary
Chairman Jerrold Nadler said. "We are going to use what process
we have in the courts and elsewhere to get the answers and the
information we need."

On Friday, Nadler made a new offer to Barr aimed at breaking
the deadlock over Democratic demands to see the unredacted
Mueller report. His new plan is for lawmakers and certain
staffers to be able to see the redacted portions of the report
that don’t include grand jury material.

“If the department persists in its baseless refusal to comply
with a validly issued subpoena, the committee will move to
contempt proceedings and seek further legal recourse,” Nadler
wrote in a letter to Barr, setting a deadline of Monday at 9
a.m. in Washington for a response.

Representative Doug Collins, the Judiciary panel’s top
Republican, suggested that Nadler and Democrats are trying to
look like they are carrying out a process akin to impeachment--
such as with their demand that committee lawyers as well as
members question Barr -- without actually taking that
politically risky route.

“The procedural and legal perks of impeachment do not apply,
and the chairman can’t have it both ways,” Collins said in a
statement. “He can’t try to pacify his liberal base by
pretending to do impeachment without actually taking the
plunge. The reality of our chamber and this distinguished
committee is that when it comes to impeachment, you’re either
in, Mr. Chairman, or you’re out, and, right now, you’re out.”

Democrats said they’re continuing to explore all options to
force President Donald Trump and his administration to turn
over documents and other material needed to perform their
oversight responsibilities.

Trump made clear last week that his administration will defy
congressional subpoenas and other demands, including for his
personal finances and the handling of White House security
clearances. “We’re fighting all the subpoenas,” he declared.

‘Probably Fruitless’

In Nadler’s quest for a fuller version of the Mueller report,
one option to hold an executive branch official in contempt for
non-compliance is through a criminal contempt statute --
essentially a criminal referral to a U.S. attorney. But that
would be “probably fruitless,” said Tom Campbell, a former
Republican House member who’s a law professor at Chapman
University in California.

“Federal courts may rule on subpoena requests from
congressional committees, including resolving issues of
executive privilege and attorney-client privilege,” Campbell
said. “However, if the president disobeys an order to provide
information subpoenaed by a congressional committee, the
Congress lacks any enforcement power -- except to consider the
president’s refusal to supply that information as grounds for
impeachment.”

Even if the House were to find Barr in contempt, it would be up
to a U.S. attorney and the Justice Department -- led by Barr --
to prosecute. And the department isn’t likely to act when the
official’s non-compliance is at the direction of the president.
Federal prosecutors have broad discretion over whether to bring
charges.

Years in Court

The House could go to court to seek evidence via civil action.
But congressional researchers have documented how such
inter-branch showdowns, such as with the Justice Department’s
botched "Operation Fast and Furious" gun-running sting
operation, have taken years in the courts to reach even a
partial resolution.

Nadler hasn’t ruled out that Democrats could go so far as to
assert Congress’s long-dormant "inherent contempt" powers.

Under this approach, the House could dispatch its
sergeant-at-arms to make arrests of officials -- even holding
them on the Capitol grounds -- and then conduct a trial
before the full House. Someone judged to be in contempt could
be fined or jailed until the testimony or documents sought
have been provided.

But the likelihood of putting Barr or another official in a
Capitol “jail” is slim.

The tactic, used early in Congress’s history, hasn’t been
embraced since the mid-1930s. A recent federal district court
decision notes with understatement: “Exercise of Congress’s
inherent contempt power through arrest and confinement of a
senior executive official would provoke an unseemly
constitutional confrontation that should be avoided.”

That leaves impeachment. It would give the House Judiciary
Committee even broader investigatory subpoena and other
powers than it now claims in conducting oversight -- but it’s
not a popular option according to opinion polls. And
indictment by the House ultimately would prove futile so long
as the Republican-led Senate isn’t inclined to convict the
president or officials like Barr.

So Pelosi reiterated Thursday that she doesn’t believe it’s
time to consider impeachment, even as she accused Barr of
lying to Congress and said that Trump’s vow to defy subpoenas
is “obstruction of justice.”

(Updated with new Nadler offer starting in sixth paragraph.)

To contact the reporter on this story: Billy House in
Washington at bhouse5@bloomberg.net

To contact the editors responsible for this story: Kevin
Whitelaw at kwhitelaw@bloomberg.net, Bill Faries

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